Patents and Innovation Economics

Mayo v. Prometheus: An Update

The Supreme Court will hear arguments in this case on December 8, 2011. This case is about whether Prometheus’ patents (6,355,623 & 6,680,302) claim patent eligible material under 35 USC 101. Section101 is a bit obscure, but logically anything that is not found in nature (separate from man) and that solves an objective problem is an invention. Ultimately, section 101 is a threshold question of whether the subject of the patent is an invention. The novelty requirement, section 102, is not asking whether the subject of the patent is an invention, but whether the applicant is the inventor. The nonobviousness requirement, section 103, is really the outgrowth of judicial activism (see Non-Obviousness: A Case Study in Judicial Activism). The only logical basis for the nonobviousness requirement is that you have to be more than just the inventor to deserve a patent. This is a violation of the Constitution, Article 1, Section 8, Clause 8, but I digress. Section 112 of the statute is about whether the applicant fulfilled their part of the social contract. The only question before the Court is whether the patents are directed to an invention.

The patents claim methods for determining the optimal dosage of thiopurine drugs used to treat gastrointestinal and non-gastrointestinal autoimmune diseases. Thus, the questions in this case are whether determining optimal dosages of thiopurine drugs to treat autoimmune diseases exists in nature separate from man and whether this solves an objective problem? Clearly, determining optimal dosages does not exist in nature for any drug and the patent solves the objective problem of determining the optimal dosages of thiopurine drugs for autoimmune diseases. CASE DISMISSED. This case is straight forward and should never have been granted certiorari by the Supreme Court. I have previously written about this case at Mayo v. Prometheus – Supreme Court Grants Cert (Again).

I consider it bad news that the Supreme Court granted certiorari in this case, because they have gotten so many patent cases wrong in the last five years. Their understanding of patent issues would make a first year patent associate blush. However, the last patent case they decided, Stanford University v. Roche Molecular Systems, showed some signs for hope.

Mayo has attempted to obscure the issues, by blurring the differences between section 101 & sections 102 & 103. For instance “Mayo argues that the claims’ physical steps should be disregarded because they are old in the art.” (p. 1 Prometheus Brief) Whether these steps are new or old is totally irrelevant to the 101 question. This question is only relevant to the question of novelty and non-obviousness. But even with respect to the question of novelty and non-obviousness this statement is non-sense. It is a violation of both logic and legal precedent. Every invention ever created is a combination of known elements (steps) because of conservation of matter and energy – you cannot create something from nothing. From a legal precedent point of view, this is an attempt to reinstitute the point of novelty test, which was always nonsense because it violates conservation of matter and energy.

Mayo also attempts to argue that Prometheus has patented a law of nature. This is absurd – the optimal dosage for an individual human being of thiopurine drugs, is a law of nature? Admittedly, I am not an expert in pharmacology but there is no way that determining an individual dosage for a specific person is a law of nature. Mayo knows this is non-sense, so they attempt to make the argument respectable by again disregarding parts of the claims. A law of nature would be something like the absorption rate of a drug into a cell is based on certain factors. An application of that law of nature, for instance to tailor a drug so it has a faster or slow absorption rate is an invention.

Mayo then puts forth the fraudulent argument that every patent should be evaluated by the courts as to whether it “promotes science and the useful arts.” First, of all the preamble to Article 1, Section 8, Clause 8 is not limiting and never was meant to be limiting. It is standard knowledge to every patent attorney that preambles are not meant to be limiting. The Constitutional clause uses the word “RIGHT” and by right the Founding Fathers meant “natural rights”, which are not subject to some utilitarian purpose. The right to Life, Liberty, and the Pursuit of happiness are not subject to some utilitarian goal, they are unalienable – inherent in being a human being. The fraudulent nature of this argument can be seen in the fact that its proponents never suggest that every trashy novel, movie, or painting should not receive copyright protection because it does not advance science and the useful arts.

Mayo then puts forth another argument made by every parasite – namely that patents are a monopoly. This is just nonsense. Patents are a property right not a monopoly. The statute defines patents as a personal property right and patents meet all the tests of a property right. Namely, 1) Does the right arise because the person created something? Creation is the basis of all property rights. The law is just recognizing the reality that the person is the creator and without that person the creation would not exist. This is consistent with Locke’s Natural Rights and Ayn Rand’s Objectivism. 2) If someone else was the creator would they have received the right in the creation? This ensures that the right does not arise from political favoritism. 3) Is the right freely alienable? Freely alienable means that right can be sold, transferred, divided, leased, etc. This is a key feature of property rights. Patents fit all three criteria and are property rights.

Mayo then puts forth the PATENTABLY absurd argument that the patent system could be replaced by government funding of inventions. The absurdity of this argument can be summed up in one word – SOLYNDRA. First of all, the Supreme Court does not have the authority to make the decision to scrap the patent system and replace it with government funding. This argument by Mayo borders on delusional. Even Congress does not have the right under the Constitution to eliminate patents that would require a Constitutional Amendment.

Mayo has neither the facts or the law on its side so its approach is to purposely confuse the issues and to outright lie. Mayo should be ashamed to have its name associated with the parasitic attempt to rob the invention of others.